If you're like most small ecommerce businesses, you're likely to write your own marketing copy. Be aware that this is a highly regulated area that could result in substantial liability.

Wikipedia defines "copy" as written material, in contrast to photographs or other elements of layout, in a large number of contexts, including magazines, advertising, and book publishing. In advertising, web marketing and similar fields, copy refers to the output of copyrighters, who are employed to write material which encourages consumers to buy goods or services.

Web copy has one major advantage over offline copy - it is interactive. Hyperlinks provide you with powerful tools to lead a potential customer through a pathway designed by you which ultimately leads to a conversion to your call to action.

When you write your own marketing copy, you necessarily make certain "claims" - statements upon which a consumer may reasonably rely in making a purchase decision. In so doing, you're facing another legal pitfall.

Legally, claims are extremely important. The Federal Trade Commission Act, 15 USC Sec. 41-58 and accompanying regulations prohibit "unfair or deceptive acts or practices". Unfair or deceptive acts or practices include claims that are not substantiated before the claim is publicly disseminated.

The FTC nailed this point home with their adoption of the "reasonable basis requirement":

• "First, we reaffirm our commitment to the underlying legal requirement of advertising substantiation that advertisers and ad agencies have a reasonable basis for advertising claims before they are disseminated."
• "The Commission intends to continue vigorous enforcement of this existing legal requirement that advertisers substantiate express and implied claims, however conveyed, that make objective assertions about the item or service advertised."
• "Objective claims for products or services represent explicitly or by implication that the advertiser has a reasonable basis supporting these claims."
• "These representations of substantiation are material to consumers. That is, consumers would be less likely to rely on claims for products and services if they knew the advertiser did not have a reasonable basis for believing them to be true."
• "Therefore, a firm's failure to possess and rely upon a reasonable basis for objective claims constitutes an unfair and deceptive act or practice in violation of Section 5 of the Federal Trade Commission Act."

So review your ads carefully, and be sure that you can substantiate and back up your ad claims.

Here are some examples of claims and the related challenges regarding substantiation and back-up:

• If you claim "best value", understand that it's a bold promise - essentially, you're promising that your offer is worth more than the asking price - if you're going to make this claim, you'd better provide the proof on your site.
• If you claim "we're no. 1", you need to be very specific regarding how you determine no. 1 - no. 1 at what? - in gross sales, in sales growth for a specific period, in the number of widgets sold?
• If you claim the "latest and greatest", "next generation" or words to that effect, you should substantiate how the claim is true - explain specifically how you justify the claim in relation to other competitive products on the market.
• If you claim "user friendly" or "easy-to-use", you need to be specific regarding substantiation of specifically how much time a certain task routinely takes, exactly which steps are automated, etc.
• If you offer a "risk-free guarantee", understand that even a free evaluation is not completely risk-free because the evaluation takes time for the customer to evaluate - time is money, so-to-speak, so a better approach is to promise an unconditional refund, no questions asked.

In addition, be careful not to make untrue or deceptive claims. Certain types of claims should be avoided altogether, including:

• never claim that you have a cure for anything - not even large drug companies with products that have been the subject of years of testing will make such a claim, so you shouldn't either;
• never specify a level of revenue or profits that a user will achieve, even if you or another purchaser has achieved a specific level of revenue or profits - remember the old adage, "your mileage may vary";
• Never promise specific results - again "your mileage may vary".

The FTC has special rules governing any use of the term "FREE" (or similar words to that effect), which the FTC believes is frequently used in an untrue or deceptive way.

Similar words to "free" include:

• Buy 1-Get 1 Free;
• 2 for 1 Sale; and
• 50% off with the purchase of 2.

According to the FTC:

"[t]he public understands that, except in the case of introductory offers in connection with the sale of a product or service, an offer of 'Free' merchandise or service is based upon a regular price for the merchandise or service which must be purchased by consumers in order to avail themselves of that which is represented to be 'Free'. In other words, when the purchaser is told that an article is 'Free' to him if another article is purchased, the word 'Free' indicates that he is paying nothing for that article and no more than the regular price for the other. Thus, a purchaser has a right to believe that the merchant will not directly and immediately recover, in whole or in part, the cost of the free merchandise or service by marking up the price of the article which must be purchased, by the substitution of inferior merchandise or service, or otherwise."

The UCC provides that you automatically make the implied warranties listed above for products, unless you properly disclaim them. So, if you want to avoid these unintentional implied warranties, you must disclaim them in both your Terms of Use and in your Customer Agreement.

Express warranties are promises that are explicitly offered to a purchaser, whether they appear in advertising, a formal contract or certificate, or some other form.

The most likely way to create an unintended express warranty is to provide a demo or a product sample on your website. The UCC provides that a demo or product sample would create an express warranty that your products conform to the demo or sample. You may, however, disclaim these warranties. So, again, if you want to avoid these unintentional express warranties, you must disclaim them in both your Terms of Use and in your Customer Agreement.